United States Practice in International Law: Volume 1, 1999-2001 (United States Practices in International Law)

Sean D. Murphy's wide-ranging and in-depth 2002 survey of U.S. practice in international law in the period 1999 & ndash;2001 draws upon the statements and actions of the executive, legislative and judicial branches of the U.S. government to examine its involvement across a range of areas. These areas include diplomatic and consular relations, jurisdiction and immunities, state responsibility and liability, international organizations, international economic law, human rights, and international criminal law. At the time of its first publication this summary of the most salient issues was a central resource on U.S. practice in international law. The volume contains extracts from hard-to-find documents, generous citations to relevant sources, tables of cases and treaties, and a detailed index. Revealing international law in the making, this essential tool for researchers and practitioners was the first in a series of books capturing the international law practice of a global player Cover 1 Half-title 3 Title 5 Copyright 6 Summary of Contents 7 Contents 8 Foreword by Judge Thomas Buergenthal 14 Acknowledgments 16 Table of Periodical Abbreviations 17 Table of Cases 19 Table of U.S. Statutes 23 Table of Treaties 25 Chapter I General International and U.S. Foreign Relations Law 27 OVERVIEW 27 U.S. INFLUENCE ON INTERNATIONAL LAW 28 Secretary of State Albright on the Rule of Law in U.S. Foreign Policy 28 Senator Helms on the United States and the United Nations 30 U.S. Foreign Assistance as a Means of Conflict Management 33 Effectiveness of U.S. Humanitarian Assistance Programs 34 U.S. Department of State 1999 Reorganization 35 INTERNATIONAL AND FOREIGN RELATIONS LAW INFLUENCES ON THE UNITED STATES 36 Interpretation of Treaty Obligations in Light of Foreign Court Decisions 36 Treaty Obligations as Evidence of Federal Preemption 37 Federal Foreign Relations Law Preemption of State Law 40 Chapter II State Diplomatic and Consular Relations 43 OVERVIEW 43 RECOGNITION OF STATES AND GOVERNMENTS 43 U.S. Reaction to Right-Wing Party Joining Austrian Government Coalition 43 U.S. Reaction to Military Coup in Pakistan 45 U.S. and OAS Reaction to Irregular Election in Peru 47 Resumption of U.S. Diplomatic Relations with the FRY 49 PERSONA NON GRATA 51 Expulsion of Russian Diplomats for Spying 51 Expulsion of Cuban Diplomats for Spying 52 CONSULAR AFFAIRS 53 Execution of Paraguayan National After Consular Notification Error 53 Execution of Canadian National After Consular Notification Error 57 Execution of German Nationals After Consular Notification Error 58 Effect of LaGrand Case for Mexican on Death Row 64 Violation of the Vienna Convention as a Basis for Suppression of Evidence 66 Chapter III State Jurisdiction and Immunities 69 OVERVIEW 69 JURISDICTION 70 Extraterritorial Application of U.S. Criminal Statutes 70 Extraterritorial Application of U.S. Statutes to Maritime Zones 73 Extraterritorial Application of Florida Statute to Nonresidents 75 U.S. and EU Negotiations Regarding the “Helms-Burton” Act 76 I. DISCIPLINES 77 A. General Disciplines 77 B. Specific Disciplines 78 II. MODALITIES 78 Jurisdiction over Salvage of RMS Titanic 80 Ownership of Sunken Spanish Warships 83 FOREIGN SOVEREIGN IMMUNITIES ACT 86 Background 86 Procedural Aspects of the FSIA 86 Individuals as Foreign Sovereigns 87 Corporations as Foreign Sovereigns 88 Waiver of Immunity 90 Commercial Activity Exception 91 Expropriation Exception 93 Tortious Activity Exception 94 Arbitration Exception 95 Terrorist State Exception 96 Counterclaims 110 Immunity of Foreign State Assets from Attachment or Execution 111 DIPLOMATIC OR CONSULAR IMMUNITIES 112 Waiver of Georgian Diplomat’s Immunity from U.S. Criminal Jurisdiction 112 Immunity Provided Visiting Peruvian Official Charged with Torture 114 IMMUNITY AS HEAD OF STATE 115 Immunity as Head of State for Zimbabwe’s President Mugabe 115 ACT OF STATE DOCTRINE 117 Tax Ruling by Brazil Minister as an Act of State 117 Chapter IV State Responsibility and Liability 121 OVERVIEW 121 RULES OF STATE RESPONSIBILITY 121 U.S. Comments on ILC Draft Articles on State Responsibility 121 PAYMENT OF COMPENSATION 124 Persons of Japanese Ancestry Interned During the Second World War 124 Bombing of Chinese Embassy in Belgrade 125 Collision with Italian Ski Gondola 128 Provision of Compound Interest Under International Law 128 ESPOUSAL OF CLAIMS 131 Compensation for U.S. Nationals Persecuted by the Nazi Regime 131 State Department Discretion to Espouse U.S. National’s Claim 133 1. The District Court Erred In Reviewing the Secretary’s Conduct of Negotiations With Germany, For The Court Intruded Upon... 133 2. The District Court Had No Warrant Under The APA To Review, And Then Intrude Upon, the Secretary’s Discretion. 134 Facilitating Payment by Sri Lanka to U.S. Investor 136 Facilitating Property Restitution in Central and Eastern Europe 137 Chapter V International Organizations 139 OVERVIEW 139 UNITED NATIONS 139 Payment of U.S. Arrears to the United Nations 139 Employment of U.S. Nationals at UN Organizations 145 U.S. Support for Immunity of UN Special Rapporteur 146 Gerritsen at 259. 148 U.S. Support of UN Sanctions by High Seas Interdiction 150 U.S. Support for Deployment of Peacekeepers to East Timor 151 U.S. View on Functions of the Depositary of a Treaty 154 Barring of FRY Representative at the UN Security Council 155 Chapter VI International Law and Nonstate Actors 157 OVERVIEW 157 NONSTATE GOVERNING AUTHORITIES 157 Status of Palestine Liberation Organization at the United Nations 157 U.S.–Taiwan Relations 158 Sovereign Immunity Accorded to American Institute in Taiwan 160 Taiwan Treaty Obligations as Derived from PRC 161 Capacity of Hong Kong to Enter Into Treaty Relations 162 SECOND WORLD WAR ERA CLAIMS AGAINST NONSTATE ACTORS 162 Background 162 Claims against German Industry and German Banks 163 Claims against Austrian Industry 171 Claims against Insurance Companies 171 Claims against Swiss and Austrian Banks 173 Claims for Confiscated Art 176 Claims against Japanese Companies 178 INDIVIDUALS 183 U.S.–EU “Safe Harbor” Data Privacy Arrangement 183 Chapter VII International Oceans, Environment, Health, and Aviation Law 189 OVERVIEW 189 LAW OF THE SEA 189 Extension of U.S. Contiguous Zone 189 U.S.–Mexico Continental Shelf Boundary in Gulf of Mexico 190 High Seas Fishing Generally 191 Conservation of Fish in the Western and Central Pacific Ocean 193 Amendment of U.S.–Canada 1985 Pacific Salmon Treaty 195 U.S. Sanctions against Japan for Whaling 196 American Indian Whaling Rights 199 INTERNATIONAL ENVIRONMENTAL LAW 200 Rejection of Kyoto Protocol to Climate Change Convention 200 WTO Decisions on Shrimp/Turtle Import Restrictions 203 Signing of Persistent Organic Pollutants Treaty 206 INTERNATIONAL HEALTH LAW 208 Permitting Patent Infringements to Combat AIDS in Africa 208 U.S. Funding to Combat AIDS Globally 210 Guatemalan Suit against U.S. Tobacco Companies 212 WHO Report Condemning U.S. Tobacco Companies 213 Retention of the Smallpox Virus 215 AIR AND SPACE LAW 216 Admissibility of U.S.–EU “Hushkits” Dispute Before the ICAO 216 Interpretation of Warsaw Convention in U.S. Courts 218 Aerial Incident off the Coast of China 221 Privatization of INTELSAT 225 Chapter VIII International Economic Law 227 OVERVIEW 227 INTERNATIONAL FINANCE 227 Restructuring Proposals to Address Global Economic Turmoil 227 Debt Relief for Heavily Indebted Poor States 231 World Bank Financing for Relocating Chinese Farmers in Tibet 233 Unsuccessful U.S. Opposition to IBRD Loans to Iran 236 BILATERAL TRADE 236 USTR Report on Foreign Trade Barriers 236 U.S.–PRC Trade Relations 237 U.S.–Jordan Free Trade Agreement 241 U.S.–Vietnam Trade Agreement 243 President Denied “Fast-Track” Trade Negotiating Authority 245 U.S. Environmental Assessment of Trade Agreements 246 Unilateral U.S. Actions against Steel Imports 247 Reform of U.S. Sanctions Relating to Agriculture and Medicine 250 Easing of U.S. Economic Sanctions on Iran 251 NAFTA 253 Constitutionality of NAFTA 253 Classification of NAFTA Goods 255 U.S.–Canada Sport Fishing and Tourism Trade Dispute 256 Summaries of Selected Chapter 11 Investor–State Disputes 256 U.S. Interpretation of Core Chapter 11 Standards 262 Statements by NAFTA Parties as a “Subsequent Agreement” Interpreting the NAFTA 265 Confidentiality of Chapter 11 Proceedings 267 Chapter 19 Anti-dumping and Countervailing Duty Disputes 269 Chapter 20 General Dispute Resolution 270 REGIONAL TRADE 271 Africa and Caribbean Trade and Development Act 271 Call for Completion of FTAA by 2005 272 WORLD TRADE ORGANIZATION 274 U.S. Experience with WTO Dispute Settlement 274 Decision on U.S. Section 301 Trade Authority 275 Decision on U.S. Anti-Dumping Act of 1916 276 Decision on U.S. Tax Benefits for “Foreign Sales Corporations” 278 Decision on EU Restrictions on Banana Imports 282 Decision on EU Restrictions on Hormone-Treated Beef Imports 285 Canadian Measures against “Split-Run” Magazines 286 Proposed “Millennium” Round of Multilateral Trade Negotiations 287 Chapter IX International Human Rights 291 OVERVIEW 291 NEW TREATIES AND INSTRUMENTS 291 International Convention to Eliminate the “Worst Forms of Child Labor” 291 Signing of Protocols to Rights of the Child Convention 293 Declaration on the Promotion of Democracy 293 Voluntary Human Rights Principles for Extractive and Energy Companies 295 IMPLEMENTATION OF HUMAN RIGHTS 297 U.S. Government Internal Coordination of Human Rights Matters 297 Funding Restrictions Relating to Foreign Security Forces 297 U.S. Sanctions against States Tolerating Religious Persecution 297 U.S. Criticism of PRC at the UN Commission on Human Rights 300 Defeat of House Resolution on Armenian Genocide 300 Inapplicability of ICCPR to Death Penalty Case 301 Inapplicability of OAS Report to Death Penalty Case 303 Fifth Amendment Inapplicability to Overseas Torture of Aliens 305 Release of U.S. Documents on Rwandan Genocide 306 The Definition of Genocide 308 The Existence of Genocide in Rwanda 308 REPORTING ON HUMAN RIGHTS 309 U.S. Department of State Country Reports on Human Rights Practices 309 U.S. Designation and Report on International Religious Freedom 313 U.S. First Report to the UN Committee on Racial Discrimination 314 U.S. First Report to the UN Committee against Torture 315 CRITICISM OF THE UNITED STATES 318 UN Reaction to U.S. Torture Convention Report 318 Amnesty International Criticism of the United States for Human Rights Violations 319 U.S. Promotion of Human Rights Abuses in Guatemala During the Cold War 320 OAU Report Regarding Rwandan Genocide 321 Loss of U.S. Seat on the UN Human Rights Commission 324 ALIEN TORT CLAIMS ACT AND TORTURE VICTIM PROTECTION ACT CASES 324 Background 324 Forum Non Conveniens 325 Statute of Limitations 327 Suits against Corporate Persons 328 Suits against Persons Acting on Behalf of the U.S. Government 330 Judgments against Radovan Karadzic 332 Case against Salvadoran Generals in Nuns’ Deaths 334 IMMIGRATION 336 Background 336 Treatment of Aliens Who Commit Crimes in the United States 337 Treatment of Illegal Aliens Who Have Committed Crimes Outside the United States 339 Spousal Abuse as a Basis for Asylum 339 Female Genital Mutilation as a Basis for Asylum 340 Tracking Aliens in the United States 340 Effect of Torture Convention on U.S. Immigration Law 342 Selective Enforcement of Immigration Law Based on Political Views 344 Return of Elián González to Cuba 345 Chapter X International Criminal Law 355 OVERVIEW 355 LAW ENFORCEMENT GENERALLY 355 Transmittal to the Senate of Law Enforcement Treaties 355 Relevance of Torture Convention to U.S. Extradition Process 358 U.S. Assistance Regarding Prosecution of Chilean Former President Pinochet 361 Combating Bribery of Foreign Public Officials 363 U.S. Sanctions against International Narcotics Traffickers 364 Multilateral Listing of States as Money Laundering Havens 366 OECD Listing of States for Unfair Tax Practices 367 International Trafficking in Persons; Especially Women and Children 369 International Trafficking in Stolen Cultural Property 371 Adoption of Convention on Cybercrime 373 TERRORISM 375 U.S. Annual Report on Global Terrorism 375 U.S. Designation of Foreign Terrorist Organizations 376 Law Enforcement Efforts in Response to Embassy Bombings 377 The Bombing in Nairobi 378 The Dar es Salaam Bombing 379 Lockerbie Bombing Trial in The Netherlands 385 Conventions on the Suppression of Terrorist Bombings and Financing 392 LAW OF WAR 395 U.S. Adherence to International Humanitarian Law 395 U.S. Support for ICTY by Detaining Bosnian Serb Indictees 397 ICTY Order for Disclosure of Information by NATO/SFOR 398 U.S. Surrender of Indictee to ICTR 401 U.S. Support for ICTY/ICTR Through Reward Programs 403 Call for War Crimes Trials of Iraqi Leaders 403 Sierra Leone Amnesty and Special War Crimes Court 405 Signing of Treaty Establishing International Criminal Court 407 U.S. View of the Crime of Aggression 412 Chapter XI Use of Force and Arms Control 413 OVERVIEW 413 MILITARY ATTACKS 414 Air Attacks against the FRY to Support Kosovar Albanians 414 President’s Authority to Launch Air Strikes against the FRY 429 FRY Case against NATO States Regarding Air Strikes 432 Missile Attacks against Iraq 434 Response to Terrorist Attacks on East Africa Embassies 443 Response to Terrorist Attacks on World Trade Center and Pentagon 447 ARMS CONTROL 467 North Korean Nuclear Proliferation 467 India–Pakistan Nuclear Weapons Tests 469 Nuclear Weapons States Pledge Regarding Unequivocal Elimination 474 U.S.–Russia Agreement to Exchange Information on Missile Launches 475 U.S. Withdrawal from Anti-Ballistic Missile Systems Treaty 476 U.S. Rejection of Protocol to Biological Weapons Convention 481 National Implementation (Article IV) 483 Consultation and Cooperation (Article V) 483 Assistance to Victims (Article VII)and Technical and Scientific Cooperation (Article X) 483 UN Conference on Illicit Trade in Small Arms 484 Chapter XII Settlement of Disputes 487 OVERVIEW 487 SETTLEMENT OF DISPUTES GENERALLY 487 Brcko Arbitration 487 Middle East Mediation 488 Eritrea–Ethiopia Peace Agreement 494 Peru–Ecuador Border Agreement 495 IRAN–U.S. CLAIMS TRIBUNAL 496 Challenge of the President of the Tribunal 497 Challenge of Judge Bengt Broms 498 Iranian Obligation to Replenish the Security Account 500 U.S. Obligation to Terminate Litigation in U.S. Courts 502 U.S. Obligation Regarding Return of the Shah’s Assets 504 Dismissal of Case against the FRBNY 505 Chapter XIII Private International Law 507 OVERVIEW 507 CONVENTIONS 507 U.S. Implementation of Intercountry Adoption Convention 507 Interpretation of Convention on International Child Abduction 509 Inapplicability of Letters Rogatory Statute to ICC Arbitration 512 Negotiation of Convention on Jurisdiction and Enforcement of Judgments 513 Annex 517 Index 521 Sean D. Murphy's in-depth survey of U.S. practice in international law in the period 2002-2004 draws upon the statements and actions of the executive, legislative and judicial branches of the U.S. government to examine its involvement across a range of areas. These areas include diplomatic and consular relations, jurisdiction and immunities, state responsibility and liability, international organizations, international economic law, human rights, and international criminal law. This summary of the most salient issues during 2002-2004 (ranging from the treatment of detainees during the Afghan conflict in the spring of 2002 to the invasion and occupation of Iraq in 2003-2004) is a central source of information about U.S. practice in international law. Revealing international law in the making, this essential tool for researchers and practitioners is the second in a series of books capturing the international law practice of a global player. This Survey Draws Upon The Statements And Actions Of The Executive, Legislative And Judicial Branches Of The U.s. Government. Topics Include Diplomatic And Consular Relations, Jurisdiction And Immunities, State Responsibility And Liability, International Organizations, International Economic Law And Human Rights. Containing Extracts From Hard-to-find Documents, Generous Citations To Relevant Sources, Tables Of Cases And Treaties, And A Detailed Index, This Essential Tool For Researchers And Practitioners. V. 1. 1999-2001 -- V. 2. 2002-2004. Sean D. Murphy. Includes Bibliographical References And Index.

This survey draws upon the statements and actions of the executive, legislative and judicial branches of the U.S. government. Topics include diplomatic and consular relations, jurisdiction and immunities, state responsibility and liability, international organizations, international economic law and human rights. Containing extracts from hard-to-find documents, generous citations to relevant sources, tables of cases and treaties, and a detailed index, this essential tool for researchers and practitioners is the first in a series of similar volumes.